J-S06022-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RUDOLPH GARY :
:
Appellant : No. 1629 EDA 2015
Appeal from the PCRA Order May 15, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006515-2010
BEFORE: MOULTON, J., RANSOM, J., and FITZGERALD, J.*
MEMORANDUM BY RANSOM, J.: FILED APRIL 24, 2017
Appellant Rudolph Gary pro se appeals from the order entered May 15,
2015, denying his petition for collateral relief filed under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
The relevant facts and procedural history are as follows. Appellant, a
former police officer, personally engaged in a domestic dispute outside of his
ex-wife’s abode; his gun fired multiple bullets, killing Howard Williams and
injuring Indira Johnson in her leg. On April 25, 2012, Appellant entered a
negotiated guilty plea to third-degree murder and aggravated assault.1
Appellant was sentenced to an aggregate term of twenty-five to sixty years
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*
Former Justice specially assigned to the Superior Court.
1
Respectively, 18 Pa.C.S. §§ 2502(c), 2702(a).
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of incarceration in accordance with the plea bargain. See Order, 4/25/2012.
Appellant filed no post-sentence motion or direct appeal from the judgment
of sentence. Appellant’s judgment of sentence became final thirty days
thereafter on May 25, 2012. See 42 Pa.C.S. § 9545(b)(3).
Appellant timely filed pro se his first PCRA petition on May 21, 2013,
and the PCRA court appointed counsel. In December 2014, appointed
counsel filed a “no merit” letter and a petition to withdraw.2 In January
2015, the court issued notice of intent to dismiss without an evidentiary
hearing pursuant to Pa.R.Crim.P. 907. In February 2015, Appellant filed a
response objecting to counsel’s “no merit” letter. In May 2015, the PCRA
court dismissed the petition as without merit and granted counsel’s petition
to withdraw. In June 2015, Appellant timely filed pro se a notice of appeal
and subsequent court-ordered 1925(b) statement. In February 2016, the
PCRA court issued a responsive opinion.
On appeal, Appellant pro se raises the following issues:
I. Whether [plea] counsel for [Appellant] exhibited
[i]neffective [a]ssistance of counsel which in the circumstances
of the particular case so undermined the truth determining
process that no reliable adjudication of guilt or innocence could
have taken place?
II. Whether the PCRA [c]ourt erred in accepting the petition
without an evidentiary hearing, where [Appellant] provided
exculpatory evidence of a key prosecution witness admitting that
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2
See Commonwealth v. Turner, 544 A.2d 927, 928 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213, 215 (Pa. Super. 1988).
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she provided false testimony at the preliminary hearing and is
now recanting that testimony. [sic] Testimony that was
instrumental in [Appellant] accepting a plea to crimes of which
he is legally innocent?
III. Whether the PCRA [c]ourt erre[d] in accepting the petition
without an evidentiary hearing where [Appellant’s] plea was
rendered unknowing, involuntary and unintelligent as a result of
[plea] counsel’s ineffectiveness?
IV. Whether [plea] counsel erroneously informed [Appellant]
during plea negotiations of a mandatory sentence for [t]hird
[d]egree [m]urder?
V. Whether [plea] [c]ounsel’s failure to interview Commonwealth
and/or [d]efense witnesses, failure to investigate possible
defenses, and defense favorable evidence, left counsel
unprepared for trial. Leading to erroneous advice and animosity
towards the defendant’s illegally induced plea?
Appellant's Br. at 3.
Our standard of review is as follows:
In reviewing the denial of PCRA relief, we examine whether the
PCRA court's determination ‘is supported by the record and free
of legal error.’ Commonwealth v. Rainey, 928 A.2d 215, 223
(Pa. 2007). To be entitled to PCRA relief, appellant must
establish, by a preponderance of the evidence, his conviction or
sentence resulted from one or more of the enumerated errors in
42 Pa.C.S. § 9543(a)(2)[.]
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal citations
and quotation marks omitted).
“[A]fter a defendant has entered a plea of guilty, the only cognizable
issues in a post-conviction proceeding are the validity of the plea of guilty
and the legality of the sentence.” Commonwealth v. Rounsley, 717 A.2d
537, 538 (Pa. Super. 1998) (citing Commonwealth v. Martinez, 539 A.2d
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399 (Pa. Super. 1988)). However, an ineffective assistance of counsel claim
in connection with advice rendered regarding whether to plead guilty is
cognizable under the PCRA pursuant to 42 Pa.C.S. § 9543(a)(2)(ii). See
Commonwealth v. Barndt, 74 A.3d 185, 191 (Pa. Super. 2013).
Appellant asserts ineffective assistance of plea counsel on several
grounds.
[C]ounsel is presumed effective, and [appellant] bears the
burden of proving otherwise. To prevail on an ineffectiveness
claim, appellant must establish: (1) the underlying claim has
arguable merit; (2) no reasonable basis existed for counsel's
actions or failure to act; and (3) [appellant] suffered prejudice
as a result of counsel's error such that there is a reasonable
probability that the result of the proceeding would have been
different absent such error. Failure to prove any prong of this
test will defeat an ineffectiveness claim. [I]f a claim fails under
any necessary element of the Strickland test, the court may
proceed to that element first. When an appellant fails to
meaningfully discuss each of the three ineffectiveness prongs, he
is not entitled to relief, and we are constrained to find such
claims waived for lack of development. Further, counsel cannot
be deemed ineffective for failing to raise a meritless claim.
Fears, 86 A.3d at 804 (internal citations and quotation marks omitted); see
also Commonwealth v. Flanagan, 854 A.2d 489, 502 (Pa. 2004) (noting
that appellate review of an allegation that counsel was ineffective in
connection with a guilty plea “dovetails with the arguable merit/prejudice
requirements”). In addition,
Allegations of ineffectiveness in connection with the entry of a
guilty plea will serve as a basis for relief only if the
ineffectiveness caused appellant to enter an involuntary or
unknowing plea. In determining whether a guilty plea was
entered knowingly and intelligently, a reviewing court must
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review all of the circumstances surrounding the entry of that
plea.
Fears, 86 A.3d at 806–07 (quoting Commonwealth v. Allen, 557 Pa. 135,
732 A.2d 582, 587 (1999) (internal citations omitted)). Thus, we will
proceed by addressing the PCRA court’s findings with respect to Appellant’s
claims of ineffective assistance of counsel.
First, Appellant contends that counsel’s failure to advise him of the
possibility of a “self-defense instruction” rendered his plea involuntary or
unintelligent. Appellant's Br. at 6. Second, Appellant contends that
unspecified “erroneous legal advice” provided by counsel caused him to
enter an involuntary or unknowing plea. See id. at 8. Third, Appellant
contends that counsel’s unpreparedness, failure to investigate, and incorrect
guidance on the applicable sentence range for third-degree murder, induced
him to enter an involuntary guilty plea. See id. at 9. Fourth, Appellant
contends that but for plea counsel’s failure to interview Ms. Johnson and
discover her civil suit statement, he would not have pleaded guilty and
would have demanded a trial. See id. at 10.
While this Court is willing to construe liberally materials filed by a pro
se litigant, we note that Appellant is not entitled to any particular advantage
because he lacks legal training. Commonwealth v. Rivera, 685 A.2d
1011, 1013 (Pa. Super. 1996). Indeed, “[c]laims of ineffective assistance of
counsel are not self-proving.” Commonwealth v. Wharton, 811 A.2d 978,
986–87 (Pa. 2002). Mere abstract or boilerplate allegations of
ineffectiveness do not discharge Appellant’s burden of proving
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ineffectiveness. Commonwealth v. Bond, 819 A.2d 33, 40 (Pa. 2002). A
petitioner who fails to develop a claim of ineffective assistance of counsel will
not prevail in the face of the presumption that counsel was competent.
Commonwealth v. Pierce, 786 A.2d 203, 221 (Pa. 2001). “Such an
undeveloped argument, which fails to meaningfully discuss and apply the
standard governing the review of ineffectiveness claims, simply does not
satisfy Appellant's burden of establishing that he is entitled to any relief.”
Commonwealth v. Bracey, 795 A.2d 935, 940 n.4 (Pa. 2001).
Appellant’s brief fails to develop any meaningful argument regarding
his claim of ineffective assistance of counsel or cite relevant authority to
support his claims of ineffective assistance of counsel. See Pa.R.A.P. 2119.
Accordingly, we could suppress his appeal on that basis. See In re Ullman,
995 A.2d 1207, 1211–12 (Pa. Super. 2010) (noting that this Court may
quash or dismiss an appeal if the appellant fails to conform to the
requirements set forth in the Pennsylvania Rules of Appellate Procedure);
Commonwealth v. Adams, 882 A.2d 496, 497-98 (Pa. Super. 2005)
(laying out the standard forms that appellate briefs shall follow); see also
Pa.R.A.P. 2111(a)(1)-(11); Pa.R.A.P. 2114-2119 (specifying in greater detail
the material to be included in briefs on appeal).
Notwithstanding, we note briefly that Appellant’s arguments are
without merit. Here, the PCRA court conducted a full colloquy. Appellant
accepted the facts presented by the Commonwealth. See Notes of
Testimony (N.T.), 4/25/2017, at 12-15. The court informed Appellant that
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“when you enter into a guilty plea, you waive, you give up, the right to
present any defense.” Id. at 11. Appellant acknowledged that he
understood his plea bargain enabled him to secure a lower sentence and
forfeited the right to a trial or defense. See id. at 12. Here, Appellant
intelligently waived his right to assert any defense, such as self-defense, by
pleading guilty since he was giving up his rights to a trial. See id. at 9.
Moreover, plea counsel had an objectively reasonable basis for not
raising self-defense. The Commonwealth was prepared to call numerous
witnesses in support of its case against Appellant for first-degree murder.
See PCRA Ct. Op., 2/22/2016, at 3-4. These witnesses would have testified
that when people asked Appellant to put the gun down, he replied “I don’t
care,” pointed the gun at the victim and fired at him repeatedly. See id. at
3. Plea counsel, an experienced trial lawyer, negotiated a strategic plea on
Appellant’s behalf to a third degree murder charge, and Appellant received a
reduced sentence for a term of years, which given the circumstances was
preferable to a possible life or death sentence. Id. at 4. By pleading guilty
to third degree murder, Appellant avoided a trial for first degree murder and
potential life sentence.
Appellant was informed of the applicable sentencing guidelines on the
record. See N.T., 4/25/2012, at at 5-9. Appellant acknowledged having
discussed his options with his family and indicated that his plea was “totally
voluntary.” Id. at 10. He stated he was satisfied with plea counsel’s
representation. See id. at 11. He also understood that the facts presented
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by the Commonwealth at his guilty plea could result in a lifetime sentence or
even the death penalty if found guilty of first degree murder. See id. at 12-
15. Because Appellant was aware of the facts underlying his offense and the
nature of his plea, the trial court did not err in accepting his plea. See
Fears, 86 A.3d at 810. Therefore, Appellant fails to establish counsel’s
actions or inactions prejudiced him and caused him to enter a plea that was
unknowing or manifestly unjust.
Here, the PCRA court determined that Appellant’s claims of
ineffectiveness were vague and belied by the guilty plea colloquy. See PCRA
Ct. Op. at 3. Its findings are supported by the record. As noted by the
PCRA court, “[t]he desire of an accused to benefit from a plea bargain which
he requests his counsel to arrange has been viewed as a ‘strong indicator’ of
the voluntariness of the plea.” Id. (quoting Commonwealth v. Myers,
642 A.2d 1103, 1106 (Pa. Super. 1994) (citations omitted)). We agree.
Accordingly, we discern no abuse of discretion.
Appellant also contends that the civil complaint filed by Indira Johnson
against Appellant and the City of Philadelphia constitutes “newly discovered
evidence.” Appellant's Br. at 7; see also Johnson v. Gary, EDF No. 1, No.
12-cv-02224 (E.D. Pa. 4/24/2012) (“Pl. Compl.”). According to Appellant,
the discrepancies between Indira Johnson’s statements to the police
compared with her civil complaint against Appellant would support a
potential defense.
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Here, Appellant waived the right to present evidence at trial by
pleading guilty to the facts as stated during his colloquy. We reiterate that
the only cognizable issues in a post-conviction proceeding are the validity of
the plea of guilty and the legality of the sentence. See Rounsley, 717 A.2d
at 538.3 Accordingly, Appellant cannot claim collateral relief on this basis.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/2017
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3
Further, Appellant’s claim is without merit, as the evidence would only be
admissible to impeach Ms. Johnson’s statements. See Commonwealth v.
Bonaccurso, 625 A.2d 1197, 1199 (Pa. Super. 1993) (rejecting after-
discovered evidence that would “merely impeach credibility” of a witness)
(quoting Commonwealth v. Schuck, 164 A.2d 13, 17 (Pa. 1960), cert.
denied, 368 U.S. 884 (1961)).
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Com. v. Gary, R.
Combined Opinion